How Should Teens' "Sexting" - the Sending of Revealing Photos - Be Regulated?

Recently, the Wall Street Journal and its law blog reported on a Pennsylvania controversy over "sexting" – the practice of sending nude or semi-nude photos of oneself or others via cellphone. After some "sexted" photos were confiscated from students at a high school, the local District Attorney threatened to file broad child-pornography charges if the teens were not willing to enroll in a five-week compulsory educational program covering topics such as "what it means to be a girl in today's society." (This topic is telling; sexting controversies often seem to be connected to adults' discomfort with girls' expression of their sexuality. It seems likely, too, that discomfort with gay teens' sexuality will eventually lead to a sexting controversy as well.)

The ACLU rightly responded with a lawsuit. Because First Amendment rights were at issue, the suit could properly be filed prior to charges being brought, in order to address the ongoing "chilling effect" on speech of the threat of prosecution hanging overhead. A federal judge has temporarily enjoined the D.A. from filing charges, with a hearing to occur in June.

These particular charges are ill-grounded in law, as the ACLU has pointed out. The photos at issue show teen girls in their bras or, in one case, topless. In contrast, child pornography laws typically cover lascivious displays of the genitals and/or sexual activity. Thus, this is likely to be an easy case -- as the judge's initial ruling, granting an injunction in the ACLU's favor in part because of its high likelihood of success on the merits, indicates.

This is not the first time that old laws have proven to be a bad fit with recent technology. But it's an especially worrying example of a general problem, because both criminal charges and First Amendment rights are at issue.

In this column, I will consider how the law should respond when much harder cases regarding sexting come along, as they inevitably will. These cases would involve photos of underage teens having sex, displaying their genitals in a lascivious way, or both. Accordingly, these cases could validly form the basis for child-pornography charges. But should they always trigger charges? Or should the law be adjusted to take into account the factual nuances of the case?

Should There Be "Romeo and Juliet" And Age-Specific Exceptions for Sexting?

There is no question that if an adult traffics in photos that fit the child pornography laws – that is, photos that include a lascivious display of an underage person's genitals, or show an underage person having sex -- it is a very serious crime, as well as despicable behavior. Indeed, the Supreme Court recently issued an opinion allowing the prosecution of even those traffickers who offer virtual child pornography (involving no real children) but believe it is real – as I discussed in a prior column.

But what if teenagers take the photographs and do the trafficking, and the subjects and recipients of the photos are exclusively the teenagers themselves? Should the crime – and the penalties – be the same?

My answer is a strong "No." We should craft new laws specifically for sexting before old laws -- designed for graver and much more morally bankrupt, dangerous, and exploitative contexts -- are applied to sexting, and serious injustice results.

One good model for the regulation of teens' sexting might be the statutory rape laws – which sometimes offer a so-called "Romeo and Juliet" exception when the two parties to an act of sex are close in age (say, 18 and 16, or 17 and 15). If a 16-year-old "sexts" a photo of himself or herself at an 18-year-old high school classmate's invitation, surely that is far less disturbing than if the 16-year-old does so at the invitation of a 40-year-old adult.

Such exceptions might accord well with our sense of when sexting is really disturbing, and appropriately deemed a crime, and when it is better addressed (if at all) with non-criminal remedies such as school suspension, parental punishments, and the like. Notably, the ACLU, in the Pennsylvania case, has suggested that "sexting," in some cases, is not innocuous and may perhaps be penalized – but not through the criminal law.

The Tricky Issues of Consent that Sexting Raises, Especially with Respect to Forwarding

"Romeo and Juliet" exceptions in the sexting context probably will do more good than harm, in practice. But they will also have costs, if they are applied as bright-line rules.

That's because sexting is, in a way, more complicated than statutory rape. Statutory rape, by definition, comes out of a consensual act of sex; if it didn't, it would just be rape. The argument is that the young person's consent is not valid due to his or her immaturity, not that consent was not given. Thus, defining a crime as statutory rape moots out the consent issue. But often, the nature of sexting is intertwined with issues of consent and lack of consent that cannot be so easily put aside.

For instance, a 16-year-old sophomore girl might "sext" a nude photo she has taken of herself to her 18-year-old senior boyfriend, yet not intend that he share it with his 18-year-old friends. In my view, the girl's sexting the photo to the boyfriend would and should be immune from prosecution under a Romeo and Juliet exception – but one might argue that his forwarding of the photo to his same-age friends should not be immune (especially, but perhaps not only, if the girl did not consent to the forwarding). In other words, with respect to sexting, a pure age-based Romeo and Juliet exception, one that renders consent irrelevant, could be a refuge for scoundrels.

This example shows a strong tension between simple, bright-line age-based safe harbors for sexting, and a nuanced inquiry into whether the original "sexter" consented to forwarding. And there may be another nuance as well: Based on my admittedly limited knowledge as a member of Generation X and a viewer of the documentary "American Teen" (which covers a sexting story, among others), it seems to me that sexting in high school may be intimately bound up with issues of popularity, insecurity, and humiliation. And that explosive mix could lead to important and tricky issues regarding consent, particularly consent to forwarding.

For instance, a teen might authorize forwarding, but then later falsely claim that he or she did not consent, if the forwarding was accompanied by the forwarder's humiliating commentary on his or her body or if such commentary by recipients led to humiliation at school. Parental disapproval – or ignorance -- of teen relationships could lead to lying, too. In addition, a good-looking teen could deem it cooler to pretend that he or she was not, in fact, the driving force ensuring that a particularly flattering and explicit photo of him or her had ended up being "sexted" to the whole school but was "shocked, shocked to discover" that this had occurred.

In sum, I suspect that there is a whole complex anthropology here that it will be difficult for adults to fully understand. High-school communities might have unspoken "default rules," such as: "You can forward, but only with the photographer's – or subject's – okay." Or, "You can forward, but only to our clique, not to outsiders."

It's worth considering, here, that the worst sexting abuses, among teenagers, might lead to a civil claim for intentional infliction of emotional distress, or to expulsion from school. In light of these possible remedies, as well as the chance that parents will take action, it's possible that Romeo-and-Juliet exceptions, although not ideal, might be good enough.

Such exceptions would still allow authorities to crack down on the 18-year-old senior who takes and "sexts" a photo of a 13-year-old eighth-grader, and who truly is engaging in child pornography. Yet these exceptions would also avoid imposing stiff criminal penalties on more-or-less same-age kids for what is, in essence, ugly immaturity, not crime. Alternatively, a compromise solution would create low-level misdemeanor offenses relating to sexting – offenses that would ensure that teenagers, who are often impulsive, could not ruin their lives with a single, ill-considered forward.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.